concurring.
I am not prepared now to decide the question made upon the argument in this case as to the power of the Governor, under the Constitution of 1868, to pardon before final conviction. The point was not made or decided by the Judge whose decision is excepted to, and I think it unnecessary for the decision of the question made in the record to decide it here. The Judge refused to notice the pardon at all, even to look to it, to inquire officially whether it was granted before or after conviction, but for the single reason that, under section 3947 of the Code, if the petitioner was shown to be *367held under a bench-warrant, he should not be discharged. I think the Judge has given too rigid a construction to that section of the Code. Suppose the prisoner, in this case, had been prepared to show that he had been tried and found not guilty . of the very offense for which the bench-warrant issued, would the Court hold that this could not be set up as a reason for discharge ? All this section of the Code means, as I think, is, that, if the prisoner is in custody under a regular bench-warrant, the Court will not go behind it. But if it can be made to appear that the bench-warrant has become functus officio, that the bill has been nol grossed, quashed, or the party found not guilty, or he proven to be out on bail, if any good reason be shown that the bench-warrant has ceased to be a legal warrant for his custody, he ought to be discharged from arrest under it. My own judgment is, that the Judge, in a habeas corpus case, may hear and adjudge any \ question of fact necessary to a legal solution of the questions presented in the case. If this pardon is a fraud he can hear, y' and, for the purposes of this writ, determine it.
I concur in the judgment overruling the Judge, on the ground that he ought to have received the evidence. As to its effect, and whether it was or was not a lawful pardon, that could not be determined until it was presented before the Court.